Case law update: Providence Building Services v Hexagon Housing Association - Hexagon granted permission to appeal to the Supreme Court

read time: 2 min

12.12.24

Sam Phillips

The long running saga between Providence Building Services and Hexagon Housing continues after the latter recently received permission to appeal to the Supreme Court.

Background to the case

We have been tracking the progress of the case through the Technology and Construction Court through to the Court of Appeal in two previous articles:

1. Navigating the termination process: lessons from Providence Building Services Limited v Hexagon Housing Association Limited

2. Providence Building Services v Hexagon Housing Association case update: Court of Appeal overturns TCC judgment on JCT Design and Build termination provisions

The case concerns whether a right to terminate under Clause 8.9.3 of the JCT Design and Build Contract 2016 must first have accrued before Providence could have any right to terminate under Clause 8.9.4.

Clause 8.9.3 provided that if a specified default continued for 28 days from the notice the Contractor may on, or within 21 days from, the expiry of the 28-day period by a further notice to the employer terminate the contractor’s employment under this contract.

Clause 8.9.4 provided that if the contractor for any reason does not give the further notice referred to in clause 8.9.3 but the employer repeats a specified default, then upon or within 28 days from the repetition, the contractor may give notice terminating its employment.

Decision at first instance and on appeal

Whilst the Technology and Construction Court found that Providence’s right to terminate the contract with Hexagon had not in fact accrued under clause 8.9.3 (by virtue of Hexagon rectifying its earlier failure to make payment within the relevant time period), the Court of Appeal overturned this first instance decision. The Court of Appeal concluded that the proper construction of the JCT Design and Build Contract is that it was not necessary that a right to terminate under clause 8.9.3 must have first accrued before the Providence could have the right to terminate its employment under clause 8.9.4.

In reaching its decision, the Court of Appeal took a holistic approach when interpreting the wording of clause 8.9.4, factoring in the case as a whole, the context of the above clauses (as well as the whole contract) and previous forms of the JCT. It remains to be seen whether the Supreme Court will come to the same conclusion.

Whilst a date has not been set for the hearing, it is expected to be held next year.

For more information, please contact our construction and infrastructure team.